"Trust That Had Been Earned Over Generations Has Been Lost in Weeks"

"High deference is out; trust, but verify is in."

That's from Magistrate Judge Zia Faruqui (D.D.C.) last week in In re: Search of One Device and Two Individuals. The context is the government's request to seal a court order—see this post for more—and the government's argument, in the process, "that courts must be highly deferential to the government's determination that unsealing would impede its investigation." But I take it that the judge's sentiment would carry over into other decisions as well, especially if other judges take a similar view:

Blind deference to the government? That is no longer a thing. Trust that had been earned over generations has been lost in weeks. Numerous career prosecutors have had to resign instead of taking actions that they believe violated their oath of office, or worse, were fired for upholding that oath. See, e.g., Tom Dreisbach, Why a DO J prosecutor resigned, telling coworkers and bosses 'you serve no man', NPR (Mar. 20, 2025) (noting that seven federal prosecutors resigned from Justice Department due to conflicts between administrative directives and their ethical and legal obligations); Glenn Thrush & Adam Goldman, Justice Dept. Fires Prosecutors Who Worked on Trump Investigations, N.Y. Times (Jan. 27, 2025) (stating that more than a dozen prosecutors were dismissed in "an egregious violation of well-established laws meant to preserve the integrity and professionalism of government agencies"). On the flip side, Department of Justice leaders have decried criminal investigations from the prior administration as ranging from witch hunts to illegal. See, e.g., Spencer S. Hsu, Keith L. Alexander & Tom Jackman, Interim D.C. U.S. attorney Ed Martin launches probe of Jan 6. prosecutions, Wash. Post (Jan. 27, 2025) (reporting that Justice Department is reviewing Jan. 6 prosecutors for "ruthlessly" prosecuting more than 1,500 individuals which was "an unprecedented, third-world weaponization of prosecutorial power.").

So which prosecutors does the court defer to? The number continues to shrink. Judges have had to reprimand government attorneys for a lack of candor to the court, and worse, probe failures to comply with court orders. See, e.g., Jess Bravin, Trump Has a Trust Problem in Court, Wall St. J. (Apr. 28, 2025) (describing how several judges have expressed doubts about whether government officials are faithfully complying with court orders, with some taking actions such as "excoriat[ing]" officials and "hold[ing] the government in contempt."); Mattathias Schwartz, White House Failed to Comply With Court Order, Judge Rules, N.Y. Times (Feb. 12, 2025) (discussing how Judge McConnell Jr.'s ruling that the Trump administration failed to comply with a court order to release billions of dollars in federal grants signals a rise in defiance against court rulings). These norms being broken must have consequences. High deference is out; trust, but verify is in.}

Comments

[LexAquilia]

If only this judge had Democrat prosecutors in front of him, then he could trust them and defer to them because of their ideological alignment with his own beliefs. In that sense, to this judge the “Government” as an institution is only a legitimate institution when it’s operated by Democrats.

They’re just umpires, folks, calling balls and strikes…

Trusting in the fairness and impartiality of judges is the trust that’s been lost.

[santamonica811]

You sound like someone who does not practice law. Or, someone who does not practice law in an actual courtroom. In my area of law (child abuse cases), I have tended to appear in the case courtroom, in front of the same judge, with the same lawyers. We all quickly get a reputation. The judge doesn’t give a shit about political affiliation. She (or he) cares about if our word means anything. The other lawyers in my courtroom care about if–when I say something in court–that representation turns out to be accurate or not.

It is not the least bit surprising that a reputation for honesty endures for years and years and years…to one’s immense benefit. And, equally unsurprising, a reputation for dishonesty endures just as long, with just as harmful consequences.

Are you actually the least bit surprised that, in the real world, a judge–when called up on to weigh the representation of an attorney’s declaration in open court–will factor in, “Well, this Attorney X lied or negligently falsely represented things to me a half-dozen times over the past 5 years . . . while that Attorney Z has–to the best of my knowledge–be absolutely honest with me for the entire 10 years she has practiced in front of me.”?

Again, if the above surprises you, you have not only never practiced litigation; you have probably never experienced real life.

[LexAquilia]

The deference owed in this case was to government as an institution, not to particular individuals.

Can you try your rebuttal again, but this time working with a proper set of premises?

[David Nieporent]

There is no “government as an institution.” (And it would be obscene to grant it deference if there were. The govt should be held to a higher standard, not a lower one.) There are specific individuals representing a specific administration, and making specific representations to courts. And they’re saying little more than “trust us, we’re from the government.”

[David Nieporent]

In any case, I urge anyone who is concerned to read the order to understand the context.

The government requested to keep things under seal.
The judge analyzed why the administration’s arguments are bullshit given the facts of this specific case.
The government’s response was not to explain why its position had merit, but just to say, “We’re the government; you’re supposed to accept whatever we say because we say it.”
The judge, in a footnote, said, “No.”

[Bob from Ohio]

“Are you actually the least bit surprised that, in the real world, a judge–when called up on to weigh the representation of an attorney’s declaration in open court–will factor in, “Well, this Attorney X lied or negligently falsely represented things to me a half-dozen times over the past 5 years . . . while that Attorney Z has–to the best of my knowledge–be absolutely honest with me for the entire 10 years she has practiced in front of me.”?”

But the magistrate is not saying that lawyers in his court have been previously dishonest with him but other lawyers at DOJ have been, based solely on press reports at NYT, WaPo and NPR, not personal experience.

He also talks about not obeying court orders but that is not the lawyers but the doing of executive officers.

[not guilty]

“Again, if the above surprises you, you have not only never practiced litigation; you have probably never experienced real life.”

I suspect that most of the commenters on these threads have never in their lives attempted to prove anything to a judicial tribunal.

[LexAquilia]

Especially posturing partisan poseurs…

[MollyGodiva]

Prosecutors in the DoJ are non-partisan, at least they were prion to Jan 20, 2025.

[Stupid Government Tricks]

Uh huh. They have never been non-partisan. What do you think prosecutorial discretion is used for?

[MollyGodiva]

Please tell me you don’t think prosecutorial discretion is supposed to be used to decline to prosecute you political allies?

[Brett Bellmore]

No, I think he’s telling you that prosecutorial discretion has always been used to decline to prosecute political allies, regardless of whether it’s supposed to be used that way.

[T.H. Steady]

This is good news if–and only if–it continues across every administration. Overly deferential jurists at every level of government (federal, state and local) have led to decades, if not centuries, of abuse.

[huskerdru]

+1

[Stupid Government Tricks]

Sounds more like sour grapes. I have little respect for lawyerism, even if some lawyers do fight the good fight, and most might be agreeable at a bbq.

Prosecutors? Little beyond contempt. Like good cops who won’t rat out the bad cops. These high-principled prosecutors who refuse to serve the evil Trump — where were they when Letitia James(?) and Bragg-something(?) were bending the law to get Trump, as promised in their political campaigns? How credible are their complaints about Trump’s prosecutorial discretion in not investigating and prosecuting Garcia’s deporter, when they approved of Obama’s prosecutorial discretion in not deporting millions of immigrants who had young children?

You took the old King’s coin, you bowed to the old King, and now you want us to believe you have principles for not taking the new King’s coin and not bowing to the new King?

Principles don’t work that way, but principals do.

[Longtobefree]

Will someone start a go fund me for Magistrate Judge Zia Faruqui to buy a mirror?

[JonFrum]

Time for the president to take a stand as a guardian of the Consitution. Judges are acting like princes, and the Supreme Court refuses to get their house in order. The president must stand on executive power and say no to out of control courts. What are they going to do about it? This country desperately needs a balance of powers reset. A good Eff Yourself is in order.

[Glaucomatose]

What “executive power” do you think the president has to bar a court from publishing its order?

[MollyGodiva]

A MAGA would say “The executive power shall be vested in a President of the United States of America.” gives Trump the executive power to overrule courts.

[Michael P]

This order comes across very much like “I have altered the deal. Pray I do not alter it any further.”

Except that Darth Vader actually had the effective authority to do that. He wasn’t some pipsqueak magistrate judge.

[Roger S]

The magistrate is an extreme partisan, citing NPR Radio that Democrat prosecutors resigned from ethical and legal conflicts? No, there were no such resignations. They are just Trump haters.

[Glaucomatose]

A judge warned the Justice Department on Monday that it might be seeking to pursue so many cases stemming from the Jan. 6, 2021, Capitol Riot that some defendants’ rights were being trampled.

U.S. Magistrate Judge Zia Faruqui delivered the stern rebuke to federal prosecutors at a hearing for a Texas man who the judge said was “lost” in the court system after being arrested in December and accused of assaulting police officers during the storming of the Capitol.

Sounds like a wide-eyed Trump hater to me, just looking for any chance he can find to go after Trump.

[Bob from Ohio]

Seems like he lacks judicial temperament.

[not guilty]

How would you know, Bob?

[Roger S]

If he blames Trump for someone being lost in the court system, yes.

[David Nieporent]

You’re not a very good reader, are you? He didn’t. He blamed Biden’s DOJ.

[huskerdru]

+1

[MollyGodiva]

To a MAGA, anyone who does not kiss Trump’s ass is an extreme partisan.

[Longtobefree]

The trust is not lost; it was given away, and by the courts.
It will not come back easily.
It will not come back soon.

[Michael D]

What a great outcome! The best thing I read in this article:

>Blind deference to the government? That is no longer a thing. Trust that had been earned over generations has been lost in weeks.

The complete opposite should have been the rule for all those past generations. Deference to the government in a system in which the courts are supposed to protect the rights of all parties is anathema to the rights of any those parties.

How anyone can lament this loss of trust is beyond all understanding.

Now, as to the DOJ and the examples cited of attorneys having concerns about a politicized DOJ, notice there are examples referenced of those concerns dating back to the Biden era, then raised again during the Trump era. Well gee, guess what, when the administration of justice is under political control, that is the norm, not an aberration, and that is the problem. Nobody ever wants to admit that perhaps the Founders got it wrong and maybe we need a new way of administering justice in this country. A suggestion, following thr model used in one state of the country:

>The judges of the Supreme Court shall nominate, and by and with the advice and consent of the Senate, shall appoint the Attorney General for the United States. The Attorney General shall hold their office during one term of ten years.

>The Attorney General shall nominate, and by and with the advice and consent of the Senate, shall appoint Attorneys for the United States for any district for which a Judge having criminal jurisdiction shall have been provided by law. They shall hold their offices for a term of eight years, eligible to succeed in office for one additional term of office.

Why, and what are the implications?

The first clause:

1. Judicial Independence: By removing the executive from the appointment of the Attorney General, the office is shielded from politicization and aligned more closely with legal integrity.
2. Structural Realignment: This design elevates the judicial branch’s role in legal administration, making the Attorney General an officer of justice rather than a political executive.
3. Accountability and Stability: The 10-year term introduces long-term continuity, while non-renewability avoids entrenchment or incentive for political behavior to secure reappointment.

The second clause:

1. Decentralization of Prosecutorial Power: Prosecutors are tied to the judicial and legal system, not to executive preferences, reinforcing due process and impartiality.
2. Regional Equity: The structure implies district-based prosecution aligned with judicial districts, ensuring prosecutorial coverage only where federal criminal jurisdiction has been legally established.
3. Term Limits with Experience Preservation: A two-term limit allows experienced attorneys to continue while preventing stagnation or the development of entrenched prosecutorial fiefdoms.

[Kenneth Almquist]

I agree that the DOJ should be taken out of the executive branch.

To clarify, I assume you mean that the justices of the Supreme Court will collectively agree on a nominee and send the nomination to the Senate.

I’m not sure how your proposal this would play out in practice. I think it’s likely that the Supreme Court will nominated highly qualified individuals for the post and the Senate will approve them without issue. I don’t think we can rule out the possibility of deadlock where the Senate refuses to consent to any nominee by the Supreme Court. There probably needs to be a provision for the appointment of an acting Attorney General if no nominee makes it through the Senate.